How to
Get Rid of Criminal Record in California
By Masood R. Khan
This column is of a general nature
and is not to be construed as legal advice. Be sure
to consult an attorney for your specific legal issues.
It’s not something most people would ever
want to talk about or even admit. But there are
many people out there with a criminal record. Even
seemingly minor traffic violations of the law can
become part of your criminal record. Even though
a person may not have served any jail term and only
had to pay a minimal fine, some violations are still
charged as misdemeanors, and become part of your
criminal record. This criminal record is accessible
to anyone who wishes to research your background.
So what is an otherwise upstanding member of society
to do who has that skeleton in his closet from the
past?
Under California law, with some exceptions, a person
who has been convicted of a felony, or a misdemeanor,
may petition the court to have that conviction "expunged".
That is, it can be completely removed from the record.
Certain offenses in California, such as some sex
crimes and certain Vehicle Code violations, may
be ineligible for expungement. Other crimes which
involve serving prison time (not jail) are not eligible
for expungement but may be eligible for a certificate
of rehabilitation or pardon.
The Process
If you were convicted of a misdemeanor or a felony,
for which you were not sentenced to state prison,
you can petition the court for a dismissal. Any
conviction which results in a penalty of one year
or more is a felony and any conviction with a penalty
of less than one year is a misdemeanor. If a person
has to spend time behind bars for a misdemeanor,
he or she is sent to a county jail. Any time served
for more than a year for a felony is in the state
prison system. Thus, if you were given jail time,
probation, a fine, or a combination of them, you
may be eligible to file a formal petition requesting
the court to permit you to withdraw your plea of
guilty, or nolo contendere (no contest), or verdict
of guilty if you went to trial, and enter a not
guilty plea instead. The court can set aside and
dismiss your conviction.
Four basic requirements exist for eligibility for
expungement in California:
1. You cannot be on probation and must have completed
your probationary period;
2. If you were not placed on probation at the time
of sentencing, one year must have elapsed before
you can apply for expungement;
3. If you were placed on formal probation when sentenced,
you may be required to file your petition through
the Probation Department;
4. A separate petition is required for each conviction
If you were convicted of a misdemeanor and are still
on probation, you may be able to request an early
release from probation and file a petition to have
your conviction(s) dismissed. Also, if you were
convicted of a felony and are still on probation,
you may be able to request an early release from
probation and petition the court to reduce your
felony conviction to misdemeanor and dismiss it.
The Effects of Expungement in California
Once an expungement is successfully executed, your
criminal record will no longer reflect a conviction
for the charged crime. Instead it will be listed
as a dismissal.
It is important to realize that although the term
"expungement" implies that the crime is
erased completely, that is not what literally happens
in California. Rather than being erased, what actually
happens is that your criminal record is updated
to show that the conviction was replaced by a dismissal
such that you no longer stand convicted of the offense.
Once all of your convictions have been expunged,
you can truthfully answer the question to all private
employers that you have never been convicted of
a crime.
If questioned by government employers, or government
licensing applications, if asked if you have ever
been convicted of a crime, you must respond, "Yes,
Conviction dismissed” and in California, those
government employers, and licensing agencies, must
then treat you as if you had never been convicted
of the offense.
It is still important to know that in California,
even though your criminal record is expunged:
1) You will still not be permitted to own, or possess,
a firearm until you otherwise would be able to;
2)Your dismissed conviction(s) can still be used
to increase your punishment in future criminal cases;
3) Your prior conviction(s) can still affect your
driving privilege.
Diversion Program in California
If you were referred to a "diversion"
program in California your record will have already
been changed. This is because under the diversion
program, your record will have already been changed
to show a dismissal rather than a conviction once
you finish the diversion program. If you failed
to successfully complete the diversion program,
however, your conviction will still be on your record
unless, and until, you have it expunged.
Juvenile Record
Often times, due to an absence of discretion, teenagers
may act recklessly which results in criminal convictions
for their behavior. In California juvenile records
do appear as a part of your criminal record and
continue to do so even after age 18. After the 18th
birthday, you are eligible to petition the court
to have your juvenile records sealed. Once sealed,
no one can gain access to them and they will remain
sealed until they are completely destroyed five
years after the date of sealing. You must note however,
that juvenile records are sealed ONLY upon petitioning
the court and are not sealed automatically at age
18.
(Masood Khan is attorney with Khan & Associates.
He can be reached by telephone at (888) KHAN
LAW or via email at Mkhanlaw@aol.com)
